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Update on Kingston Park
On October 18, 2018, the Supreme Court delivered its judgment in the matter Georgina Williams v Minister for Aboriginal Affairs and Reconciliation. This matter related to the approval provided to Council by the Minister under Section 23 of the Aboriginal Heritage Act for the Kingston Park Coast Park.
Justice Stanley refused Ms Williams’ application for an extension of time.
In essence Ms Williams argued that despite her application only being 23 days out of time, she should be granted an extension of time within which to bring the application.
Council’s primary submission was that an Application for Judicial Review did not enjoy a reasonable prospect of success and therefore should not be granted an extension of time, even if the delay is short.
Relevant findings made by the Judge included the following:
Did the Minister take all reasonable steps to consult with the Plaintiff?
The Judge found that Section 13 of the Aboriginal Act does not require the Minister to consult personally with each of the persons and that the obligation only required the Minister to take all reasonable steps. The Judge concluded that the taking of “all reasonable steps” will vary depending on the circumstances and noted that “it will not always be practical to consult with every person or group”.
Justice Stanley disagreed with Ms Williams’ assertions that it was incumbent upon the Minister, knowing that she had not responded to the letter and given her interest with the issue, should have made further contact with her to obtain her views in the absence of a response.
Justice Stanley said further that he was satisfied on the evidence of Ms Williams’ self-representation and her written communications that she “enjoys a high level of oral and written expression” and therefore the Minister was entitled to assume that Ms Williams, if interested, would have responded to the invitation.
Status of the Work
Justice Stanley noted that the work undertaken by Council in relation to the Minister’s authorisation was complete.
Furthermore, he noted that Council has provided to the Court an undertaking that it will not engage in any further works in reliance on the subject authorisation.
For the reasons detailed above, the Judge was of the view that even if the Extension of Time Application was approved, the substantive Application for Judicial Review did not enjoy a reasonable prospect of success.
Future works at Kingston Park
While the Judicial Review application has been refused, there are changes to Aboriginal Heritage legislation and a Native Title determination that will impact how Council proceeds with future works at the Kingston Park site.
The Tjilbruke Spring and surrounding reserve is a registered Aboriginal Heritage site. It is a registered site due to its anthropological, archaeological and cultural significance to Aboriginal people. In developing culturally significant sites of this nature, application to the Minister for approval under Section 23 of the Aboriginal Heritage Act 1998 provided protections for proponents in the case remains and/or artefacts were disturbed during development. Under the Act the Minister was the only person/body with the power to grant such approvals. While the Minister consulted with Traditional Owners, Traditional Owners were not involved in the decision making process. This is the process Council undertook for the construction of Coast Park at the Kingston Park site.
On October 17, 2017, changes to the Aboriginal Heritage Act were proclaimed. These changes intend to recognise Aboriginal people as primary decision makers about their own heritage. The Aboriginal Heritage Act now encourages land use proponents to speak directly with Traditional Owners about their plans before approaching the Minister for authorisation under the Act. It does this by creating Recognised Aboriginal Representative Bodies (RARBs); bodies empowered to speak for and make agreements about Aboriginal cultural heritage.
The Kaurna Nation is currently in the process of establishing a RARB that will cover the heritage matters within the area designated by the recent Native Title claim, including areas within the City of Holdfast Bay. The changes to the Act requires Council to develop sound working relationships with Kaurna, and more specifically their Heritage Committee and RARB in order to reach agreed outcomes for culturally significant sites.
As a result, any future work at Kingston Park reserve will require engagement and input by traditional owners. Administration has started the process of building these relationships and starting discussions.